Blitzer v. New York City Transit Authority

12 A.D.3d 222, 784 N.Y.S.2d 528, 2004 N.Y. App. Div. LEXIS 13430

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered February 28, 2003, which granted defendant’s motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint fails to state a claim for either gender or disability discrimination in the hiring process. The assertion that plaintiff was a member of a protected subclass of “attractive males” failed to identify a recognized class protected by statute (see generally Kent v Papert Cos., 309 AD2d 234 [2003]).

Plaintiff has failed to state a claim for disability discrimination predicated on his hypoglycemia and past drug use. Having been formally rejected for the position for failure to meet the “medical and/or physical requirements” for the job, he failed to allege that his admitted disabilities would not prevent him from performing the duties of subway conductor in a reasonable manner (see Executive Law § 292 [21]).

The complaint also failed to state a claim for breach of contract. Nowhere did plaintiff allege or show that he had actually received an appointment to the position of conductor. Simply passing a qualifying test, without more, does not create a contractual right to the position (see Matter of Andriola v Ortiz, 82 NY2d 320 [1993], cert denied sub nom. Andriola v Antinoro, 511 US 1031 [1994]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Buckley, EJ., Tom, Andrias, Saxe and Marlow, JJ.